Downwinders' court win seen as 'great victory'

Man planning a suit is glad health damage is recognized

By ROBERT MCCLURE, SEATTLE POST-INTELLIGENCER REPORTER

Published 10:00 pm, Friday, May 20, 2005

Every morning when 4-year-old Jay Mullen showed up at the Navy day care center, he got a glass of milk -- milk that his lawyers now say was tainted by radioactive fallout from the Hanford Nuclear Reservation.

It would be 15 years before Mullen's body was gripped by paralysis that necessitated removal of his diseased thyroid. Three more decades elapsed before Mullen found out the government had purposely released radioactive substances upwind of his childhood home in North Idaho.

Reflecting yesterday on verdicts in a lawsuit against government contractors at Hanford, Mullen savored what he called a long-awaited victory for people downwind from the bomb-making plant that ended World War II.

"It was a great victory," said Mullen, now 65 and a history professor in Medford, Ore. "Heretofore the government has not acknowledged that our health was damaged."

The federal jury in Spokane awarded $500,000 in damages Thursday to two of six "downwinders" -- a fraction of what plaintiffs' lawyers spent to bring the cases to trial.

Both winning plaintiffs had thyroid cancer and could show exposure to high doses of radiation released from Hanford. But four other downwinders got nothing.

Jurors deadlocked on the case of a cancer patient who suffered lower exposures, and rejected the claims of three other plaintiffs who had thyroid disease but not cancer.

Both sides claimed victory, and yesterday the lead attorney defending government contractors E.I. du Pont de Nemours & Co. and General Electric Co. said he plans to appeal rulings that barred the jury from hearing certain defense evidence.

Considering the relatively modest jury awards, there's no way lawyers for the rest of the approximately 2,300 downwinders can afford to keep prosecuting the cases, said Chicago lawyer Kevin Van Wart.

"The cost of the trial far exceeded the recovery. ... The plaintiffs have to go back to the drawing board," Van Wart said. "These were the cases where they thought they were going to send a message, the ones with the highest doses and ... the most sympathetic.

"They failed to deliver the goods."

Not so, said Richard Eymann, a Spokane lawyer who represents the downwinders.

"These were not significant damage cases for us. We weren't interested in hitting the lottery on these cases," Eymann said. "All we were interested in doing was proving that emissions from Hanford caused thyroid cancer."

The exposures of people living downwind of Hanford came from waste products purposely vented into the air during World War II and the Cold War. At the time, it was legal -- part of a vital defense effort -- and harmless for most people downwind, the defendants have claimed.

Van Wart said if the plaintiffs had stuck to their relatively small number of strong cases, the legal tangle wouldn't have stretched out over the decade-plus it already has consumed.

"They've built up expectations in people who had low doses," Van Wart said. "The plaintiffs saw this as a big business opportunity. They decided to sign up anybody they could find with a thyroid condition. ... If the plaintiffs had concentrated on those small number of claims that were better claims, this case could have been settled years ago."

Taxpayers are footing the bill for the defense, which Eymann said published reports have pegged as costing nearly $100 million. It's up to the government to defend the companies because that was a condition of the firms working on Hanford.

Eymann said the defendants have never offered to settle the cases that went to trial. He said the legal fight on behalf of the other downwinders will go on, and he may appeal some of the verdicts issued this week.

"There's not enough courts or enough juries to try 2,300 cases. Everybody knows that," Eymann said. "Here we have the United States government spending a hell of a lot of money fighting its own citizens when it's out there compensating (Hanford) workers for the very same illnesses."

In speaking with jurors in a courthouse hallway after the verdict, Eymann said he learned that on one of the non-cancer cases involving hypothyroidism, jurors voted 10-2 to find against the government contractors. Only 11 jurors were needed for a verdict, he said, so he is encouraged about future cases.

For his part, Mullen is most incensed not over the lack of compensation for victims but rather by the government's refusal to acknowledge blame. His father, then serving in the Navy in the Pacific, "believed the atomic bomb saved his life and protected his family."

"The irony was that while he was out there protecting his family from international enemies, his family was being radiated behind his back by his own government," he said.

Mullen said his case would present a better shot at a verdict against the contactors because he can demonstrate that he got massive exposures at the Navy base near Coeur d'Alene, where his day care was located.

Today, Mullen's still drinking a lot of milk, and waiting for his day in court.